Health Care Reform and the Constitution

On one side,Ilya Shapiro, a senior fellow at the Cato Institute, calls the health care reform act passed by Congress last year unprecedented—quite literally, without legal precedent.

On the other side, Columbia Law School professor Gillian Metzger says the controversial provision requiring all Americans to carry health insurance falls squarely within Congress’ power.

The two constitutional scholars will debate both sides of the Patient Protection and Affordable Care Act—the law’s official name—at The Council of State Governments’ 2010 National Conference from 8 to 9:30 a.m. Dec. 4 at the Rhode Island Convention Center in Providence, R.I.

The debate over federal health care reform is at the heart of Virginia vs. Sebelius, a lawsuit filed by Virginia Attorney General Kenneth T. Cuccinelli March 3, shortly after the health care law passed. To date, 20 more states are also challenging the law’s requirements that individuals must carry health insurance or face a penalty.

“Never before has the federal government tried to force every man, woman and child to buy a particular good or service,” Shapiro said in the November/December issue of Capitol Ideas, CSG’s national bimonthly news magazine. “Never before has it said that people face a civil penalty for declining to participate in the marketplace. And never before have courts had to consider such a breathtaking assertion of raw power under the Commerce Clause.”

Metzger said the minimum coverage provision falls under the broad tax power of Congress. “It really is a tax on those who choose to forego insurance. You fail to purchase insurance, it’s not made unlawful. You simply owe a penalty,” she said at a previous debate on the issue at the University of Maryland School of Law. The penalty for those who decline to buy insurance, she said, is about the cost of the lowest level of health insurance. The minimum coverage provision easily meets the requirements of the tax code, she said. That’s just one argument Metzger has to support the constitutionality of the health care reform act.